Legal precedent – it’s not what it used to be

Published: 30/09/2025

Author: Allan Norman

It’s a fundamental feature of English common law that judge-made law exists.

Rulings from judges are legally authoritative. This means that a ruling made by a judge can not only tell a local authority or a social worker what they must do in an individual case but also what the law is, and the correct interpretation of the law for any similar case.

Legal precedent and social work law  

As someone whose professional practice straddles both social work and law, I have been reflecting on the real and significant differences in how lawyers and social workers use legal precedent in their work. At risk of caricaturing, lawyers often approach legal precedent from a purist standpoint, whilst social workers aim to democratise the law. Social work law is very much at the forefront of this process.

To a lawyer, what is significant is the way in which a judgment has changed, developed, or clarified what the law is. Even, on occasion, completely overturned previous understanding of the law.

But that is not the only potential role for legal precedent. Precedent also promotes legal certainty. That means that the outcome of a case should be predictable, and similar cases should have similar outcomes. This matters to social workers - and others - who need to use the law to do their job. They need to know whether, on a particular set of facts, they can get the order they are asking for.

How is legal precedent established?   

The very different emphasis of these approaches may not immediately be clear, but I’ll illustrate with reference to pure legal theory and practice. Features of the lawyer’s approach to legal precedent include the following: 

  • The concept of the ratio of a case. This is Latin and an abbreviation for ratio decidendi. It is linked to more Latin concepts, obiter dicta and stare decisis. Basically, the lawyer is interested in the reasoning in a judgment. More precisely, which parts of the reasoning were necessary to the outcome? That is the ratio, that is the legal precedent. Anything else the judge says is obiter and does not set a precedent at all. Moreover, the lawyer will care whether the case has set a precedent - by addressing a novel point or overruling a previous precedent - or simply followed precedent. 
  • The status of the judge. Only certain judges can establish legal precedent. They are normally established on appeal, although High Court judges can establish legal precedent too. But certainly, your average Family Court judge cannot establish a legal precedent. Hence, historically, only certain judgments were published or ‘reported’, with the emphasis being on their legal significance. 

Here are three significant developments which are having a real impact on that narrow view of legal precedent: 

Firstly, with the growth of the internet, ‘reporting’ cases is easier and cheaper. It is easier to make more decisions available, and to make them available to a wider public. Not just those who can afford to subscribe to journals of reported precedents. Initiatives such as BAILII and more recently the National Archive, aim to publish most cases from most courts, and databases are searchable.

Secondly, the ‘transparency initiatives’ of the Family Court and Court of Protection - the two main first instance courts that social workers will encounter. These have been driven by an idea that there will be more public confidence in what social workers do if there is more routine publishing of the decisions that are made by those courts.

We can’t over-estimate the significance of that. Routine publication of judgments which cannot establish legal precedent in the traditional sense because of the level of the judge. And publication of cases which don’t establish a legal precedent because nothing novel was decided. One significant result of this is it becomes possible to see what happens in ‘bread-and-butter’ cases where - from the perspective of good social work practice - nothing has gone wrong.

A risk of the historic approach is that cases got published because something had gone badly wrong, skewing public perception. Being able to see that in many cases social workers are getting the orders they asked for - and to understand why - is a real shift from a perception of ‘unaccountable social workers’ in ‘secret courts’.

Thirdly, judges themselves are using judgments to give guidance to social workers on wider issues. The former President of the Family Division, James Munby, used to make a habit of this. For example, in guidance on adhering to 26 week deadlines, deprivation of liberty, and what a section 20 agreement should look like. Strictly speaking, there is no legal precedent in any of this because it’s not part of the ratio. But what social worker (or legal department) is going to say ‘it’s not part of the ratio, so I’m going to ignore what social work’s top judge has to say’? 

Democratising the law 

For an example of this phenomenon, consider the Research in Practice Case Law and Legal Summary special edition on post-adoption contact. A working group - which cannot create legal precedent - came up with some recommendations for change. A few days later the Court of Appeal gave a judgment in which they extensively analysed and referred to the working group’s recommendations. The result has been a noticeable shift in emphasis towards making expectations about post-adoption contact clear at a much earlier stage in proceedings than hitherto. 

In this brave new world, it is likely for the first time that cases in which social workers give evidence will be directly reported, not just the appeals. There is no need to consult a lawyer who understands arcane Latin phrases to work out the legal significance of a judgment. Search tools mean that we can seek out cases that are fact-similar to our own cases. Indeed, we may be interested in the outcome of cases with similar facts, without needing to know the law, in contrast to establishing principles of law that don’t rely on similar facts. We can find significant numbers of cases reflecting ‘ordinary practice’. We find judges writing with a social work audience in mind.

Across the Research in Practice Case Law and Legal Summaries, we are consciously trying to cover both new legal principles, and cases that cover ‘bread-and-butter’ issues.

Legal precedent is no longer a rarefied thing. It has been democratised. And that is a good thing. 

Allan Norman

Allan Norman prepares Case Law and Legal Summaries for Research in Practice